On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Accusation No. A-475-05-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Sapp-Peterson.
Defendant, Martha Chavarria, appeals from the September 25, 2008 order denying reconsideration of her Pre-Trial Intervention (PTI) application which was rejected by the Hudson County Superior Court Criminal Division Manager (Division Manager). We affirm.
At the outset, at the time the present appeal was filed, defendant was awaiting sentencing on her guilty plea to fourth-degree possession of false government documents, N.J.S.A. 2C:21-2.1. As such, all issues had not been resolved prior to filing the notice of appeal. We therefore agree with the State that the order from which the appeal has been taken is interlocutory. Nonetheless, in the interest of justice, we grant leave to appeal the interlocutory order nunc pro tunc. R. 2:2-4(b)(2).
The guilty plea defendant entered was part of a negotiated plea agreement. In exchange for the guilty plea, the State agreed to recommend probation and did not object to defendant's application for admission into PTI.*fn1 Although not raised as an issue by defense counsel, we note that the guidelines for admission into PTI make clear that "[e]nrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilty." Hence, defendant should not have been required to first plead guilty to the offense charged as a condition for admission into the program. That said, we address the merits of the argument raised by defendant.
Defendant claims the Division Manager denied her admission into the program based solely upon her illegal status and the nature of the charge against her, which denial constitutes a "gross abuse of discretion, egregious injustice and unfairness." We disagree.
Prior to defendant appealing the rejection of her PTI application to the Law Division, the Division Manager, in a July 28, 2008 letter responding to correspondence from defendant's attorney requesting "the rejection memorandum from the Pre-Trial Intervention Program[,]" stated:
In this case, the correct page of the UDIR [Uniform Defendant Intake Report] form was not used. Nonetheless, I instructed [the probation officer] that M[r]s. Chavarria should be rejected from PTI because she was in the United States illegally. I note that Mrs. Chavarria admits to being in the United State[s] and New Jersey for a total of eleven years. However, it appears she has done nothing to legalize her status during this time.
In addition, M[r]s. Chavarria purchased a forged driver's license to use as identification. It is my position that all of the above do not make M[r]s. Chavarria a suitable candidate for Pre[-]Trial Intervention.
In the letter brief submitted in support of defendant's appeal of the rejection to the Law Division, defense counsel argued that denial of admission into the program based upon defendant's illegal status and because she purchased a forged driver's license to use as identification, was a patent and gross abuse of discretion by the Division Manager and constituted an "egregious injustice and unfairness to defendant." During oral argument, however, considerable colloquy occurred between the court and defense counsel as to whether defendant had resided illegally in the United States for eleven years as reflected in the presentence report.
According to defense counsel, defendant, from 1982 to 1990, was a legal resident as a result of her mother's petition, but then returned to Honduras in 1990, where she remained for fifteen years before returning to the United States in 2005. Defense counsel therefore urged that defendant had not been in this country illegally. Defendant's presentence report notes that defendant claimed she returned to the United States in 2005 on a two-year visa and that she was working with an immigration lawyer to remain in the United States. In response, the prosecutor observed that ...